According to the EEOC, Flambeau employees were required to participate in a wellness program, which obligated them to undergo biometric testing and a "health risk assessment," or face consequences including cancellation of their medical insurance, disciplinary action for failing to attend the scheduled testing, and a requirement to pay the full health insurance premium in order to stay covered.

When employee Dale Arnold did not complete the biometric testing and health risk assessment, Flambeau cancelled his medical insurance and shifted responsibility for payment of the entire premium cost to him. The EEOC said employees who had taken the biometric testing and health risk assessment, by comparison, did not have their coverage cancelled involuntarily, and were only required to pay 25 percent of their premium cost.

In the EEOC’s view, the biometric testing and health risk assessment constituted "disability-related inquiries and medical examinations" that were not job-related and required by business needs, as required by the Americans with Disabilities Act (ADA). “These alleged actions and severe consequences for not providing prohibited information as part of its ‘wellness program,’ the agency claimed, “violate Title I of the ADA, which prohibits disability discrimination in employment, including making disability-related inquiries.”

The agency, citing research by the Kaiser Family Foundation, acknowledged that 94 percent of employers with over 200 workers, and 63 percent of smaller ones, now offer some sort of wellness program.

"Employers certainly may have voluntary wellness programs - there's no dispute about that - and many see such programs as a positive development," said John Hendrickson, regional attorney for the EEOC Chicago district. "But they have actually to be voluntary. They can't compel participation in medical tests or questions that are not job-related and consistent with business necessity by cancelling coverage or imposing enormous penalties such as shifting 100 percent of the premium cost onto the back of the employee who chooses not to participate. Having to choose between complying with such medical exams and inquiries, on the one hand, or getting hit with cancellation or a penalty, on the other hand, is not voluntary and not a choice at all."

Diane Cadrain is an attorney who has been writing about employment law issues for more than 20 years.